Exhibit 10.12
CLIENT AGREEMENT
THIS CLIENT AGREEMENT (the "Agreement") is made and entered into, effective
as of January 17,1997 by and between AEGIS MORTGAGE ACCELERATION CORPORATION
("Aegis"), a Delaware corporation, having its principal office located at Three
Embarcadero Center, Suite 2250, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and NORWEST
MORTGAGE, INC. ("Client"), a California corporation, having its principal office
located at 000 XX 0xx Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
WHEREAS Aegis is in the business of marketing and servicing debt
rescheduling and acceleration programs and other financial services, and in that
regard, developing new business prospects;
WHEREAS Client wishes to engage the services of Aegis to perform data
processing and marketing services under the name Norwest Mortgage Equity
Enhancement Program (the "Program");
NOW, THEREFORE, for and in consideration of the within promises and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby expressly acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
All words or phrases defined in this Section 1 (except as otherwise expressly
provided or unless the context otherwise requires) shall, for the purposes of
this Agreement, have the respective meanings set forth in this paragraph.
(a) ACH. ACH shall mean the Automated Clearing House of the Federal
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Reserve. All debits to Subscribers shall be originated through the ACH.
(b) Aegis Proprietary Information. Aegis Proprietary Information shall mean
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Aegis' products, processes and services, including research, development,
compilations of information systems, techniques, formulas, computer programs and
methods of designing such programs, documentation of computer programs and
methods, manuals, financial data, software and documentation and specifications
thereof relating to the Program and its implementation and not already known
independently by Client through non-confidential sources.
(c) Agencies. Agencies shall mean the Federal National Mortgage
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Association ("FNMA"), the Federal Home Loan Mortgage Corporation ("FHLMC"), the
Federal Housing Administration ("FHA"), the U.S. Department of Housing and Urban
Development ("HUD"), the Government National Mortgage Association ("GNMA"), the
U.S. Department of Veterans Affairs ("VA"), the Federal Reserve Board, the
Office of
***Confidential treatment has been requested with respect to the information
contained within the "[***]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission.
Comptroller of Currency, and any and all state and federal regulatory bodies
that regulate, either directly or indirectly, the activities of Client.
(d) Attrition Rate. Attrition Rate shall mean the percentage of Subscribers
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who voluntarily terminate participation in the Program and shall be measured one
hundred twenty (120) days after the Subscriber's first mortgage payment after
enrolling in the Program. The Attrition Rate shall be calculated by dividing the
number of voluntary terminations by the number of cumulative enrolled accounts
since commencement of Solicitations under the Program.
(e) Bank Accounts. Bank Accounts refers to the Fee Account (and Fee
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Accounts) and the Custodial Holding Account (and Custodial Holding Accounts) and
shall mean those certain bank accounts to be opened at Client's location or at
its designated correspondent bank, so long as the funds are FDIC insured and
provided that the bank accounts am established and maintained in accordance with
the current rules, regulations, and restrictions established by the Agencies, if
any, governing the use of bank accounts in connection with programs similar to
the Program. Subscriber mortgage payments, curtailments, and enrollment fees
shall pass through the Bank Accounts in accordance with the specifications set
forth in Exhibit D of this Agreement.
(f) Campaign. Campaign shall have the meaning contained in Exhibit E of
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this Agreement.
(g) Campaign Term. Campaign Term shall have the meaning contained in
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Exhibit E of this Agreement.
(h) Client Proprietary Information. Client Proprietary Information shall
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mean all technical, business, economic or financial information or data owned,
developed or provided by Client including but not limited to names, addresses,
account balances and account types.
(i) Custodial Holding Account. Custodial Holding Account (and
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Custodial Holding Accounts) shall mean the Bank Account or Bank Accounts to be
used exclusively for the processing of Subscriber mortgage payments and
principal curtailments in accordance with the Program. The Custodial Holding
Account may, at Client's election, pay interest at a rate established by the
Client and its bank. The Custodial Holding Account may also, in cases where a
Customer is participating in a Deferred Membership Payment Plan, be utilized to
collect a deferred enrollment fee. All interest accounting and IRS Form 1099
processing, if applicable, will be handled by Aegis.
(j) Customer. Customers shall mean those individuals currently repaying a
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mortgage debt instrument to the Client, as servicer, on a monthly schedule.
Customer
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shall also refer to those customers of Client's affiliates who are currently
repaying a mortgage debt instrument through a servicer or subservicer other than
Client.
(k) Deferred Membership Payment Plan (DMPP). Deferred Membership
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Payment Plan shall mean that version of the Program that requires payment of a
$[***] fee, or such other DMPP fee as specified in accordance with Exhibit C of
this Agreement, upon enrolling. A deferred enrollment fee will be collected
from the amount deposited in the Custodial Holding Account in excess of the
amount necessary to pay the next due monthly mortgage payment and transferred to
the Fee Account. Actual principal curtailment dollars begin to accumulate for
application to the loan balance only after the entire deferred enrollment fee is
collected. Client's portion of the deferred enrollment fee will be paid only
after the entire deferred enrollment fee has been collected. All fees,
including enrollment fees, deferred enrollment fees, service fees, and
transaction fees, are set forth in Exhibit C of this Agreement. Aegis agrees to
provide Client with monthly reports describing the status of all fees set forth
in Exhibit C.
(l) Extended Term. Extended Term shall have the meaning contained in
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Section 7 of this Agreement.
(m) Fee Account. Fee Account (and Fee Accounts) shall mean the Bank
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Account or Bank Accounts to be used exclusively for the processing of Subscriber
enrollment and service fees (including deferred enrollment fees) in accordance
with the Program.
(n) Initial Phase. Initial Phase shall have the meaning contained in the
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Program Materials and shall refer to the initial phase of Solicitations under
the Program and not any remailings or duplicate Solicitations.
(o) Initial Solicitation. Initial Solicitation shall mean the date on
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which a Solicitation of Prospects under the Program commences.
(p) Initial Term. Initial Term shall have the meaning contained in Section
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7 of this Agreement.
(q) Investor. Investor shall mean any individual, corporation, partnership,
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joint venture, trust, or unincorporated organization owning the legal interest
in a Subscriber's mortgage loan that is a participant in the Program.
(r) [***]
(s) [***]
[***] Confidential treatment has been requested for certain portions of this
document
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(t) Portfolio Penetration Rate. Portfolio Penetration Rate shall mean the
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percentage of Customers in Client's Total Target Market that enroll in the
Program as a result of Solicitations by Aegis.
(u) Program. Program shall have the meaning contained in the second
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"whereas" clause of this Agreement and shall include the [***] and Aegis's
Solicitation and Telephone Solicitation for Rescheduling, using the Program
Materials, of Prospects within Client's designated Target Market in accordance
with the specifications set forth in Exhibit A-1 hereto. All Program Materials
will reflect Client's choice of name and style, and will clearly identify the
product as after market (i.e., not a part of mortgage contract with subscriber).
[***]
(v) Program Materials. Program Materials shall mean those specifications
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and procedures, including document, scripts, and any and all marketing and
Solicitation materials prepared in connection with the Program.
(w) Proprietary Information. Proprietary Information shall mean the Aegis
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Proprietary Information and the Client Proprietary Information.
(x) Prospect. Prospect shall mean any Customer in connection with whom
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Client has provided to Aegis raw data necessary for Solicitation to sign up for
the Program.
(y) Rescheduling. Rescheduling shall mean effecting a payment mode change
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for the Subscriber from a monthly schedule (12 times per year) to an accelerated
schedule of weekly, monthly, bi-weekly, or semi-monthly payments without causing
any changes to the original loan documents.
(z) Solicitation. Solicitation shall mean any effort, means or method
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approved by the Client and implemented by Aegis to communicate the benefits of
Rescheduling to Prospects.
(aa) Subscriber. Subscriber shall mean any Prospect who has signed up for
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the Program and has had all enrollment processing completed including, but not
limited to, execution of the enrollment form, mailing of the acknowledgment
letter, and confirmation of the Subscriber data.
(bb) Target Market. Target Market shall mean, as determined jointly by
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Client and Aegis, any Customer with sufficient remaining terms, principal
balance and interest
[***] Confidential treatment has been requested for certain portions of this
document
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rate which would make Rescheduling logical and beneficial for the individual(s).
Target Markets may include:
(i) Client's existing Customers;
(ii) Customers of any of Client's affiliates including,
without limitation, Norwest Bank customers, who are
making mortgage payments to mortgage loan servicers other
than Client; and
(iii) all other customer accounts of Client.
(cc) Telephone Solicitation. Telephone Solicitations shall mean those
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telephonic solicitations of those Prospects who have previously requested
additional information. Client may approve of outbound calls to non-respondents
on a campaign-by-campaign basis.
(dd) Termination Fee. Termination Fee shall have the meaning contained in
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Exhibit E of this Agreement.
(ee) Total Target Market. Total Target Market shall mean Client's Target
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Market, as defined in paragraph 1(bb) of this Agreement, less those sub-
categories of Client's Target Market described in paragraphs 1(bb)(ii) and
1(bb)(iii) of this Agreement, as of the date of the Initial Solicitation of the
Program, (i) plus Customers in a Target Market whose mortgage loans were
originated, or whose mortgage loans were acquired by Client, after the Initial
Solicitation; and (ii) minus those Customers whose mailing materials are deemed
to be undeliverable.
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF AEGIS
Aegis warrants and represents to, agrees with, and covenants to, Client as
follows:
(a) Aegis is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware. Aegis is duly licensed,
registered, qualified and in good standing in each state where the nature of
Aegis's business activities require such licensing, registration, qualification,
and good standing.
(b) Aegis has the power and legal right to enter into and perform this
Agreement and to perform the obligations required of it hereunder, and this
Agreement and any document or instrument to be executed and delivered by Aegis
to Client pursuant hereto has been duly (or will be prior to delivery)
authorized, executed, and delivered.
(c) This Agreement and any documents or instruments now or hereafter
executed or delivered to Client by Aegis pursuant to this Agreement constitute
(or shall, when delivered to Xxxxx by Aegis, constitute) valid and legally
binding obligations of Aegis enforceable against Aegis in accordance with their
respective terms.
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(d) Aegis has in full force and effect and will maintain during the term of
this Agreement all insurance necessary to perform its obligations hereunder,
including without limitation (i) an adequate errors and omissions policy or
policies satisfying the requirements of all applicable regulatory authorities
with respect to Aegis's operations, or (ii) a standard fidelity or banker's
blanket bond. Aegis shall supply Client with evidence of such insurance on an
annual basis.
(e) Aegis shall immediately notify Client of any material failure or, to
the best of Aegis's knowledge, any anticipated material failure on its part to
observe and perform any representation, warranty, duty, covenant or agreement
required to be observed and performed by it hereunder.
(f) Aegis and the Program are consistent with and in compliance with the
current guidelines established by the Agencies governing programs such as the
Program. Aegis and the Program comply with all state and federal statutes and
regulations that are applicable to the Program. Aegis shall have a duty to
learn of and comply with any and all disclosure and other regulatory
requirements which are mandated by federal and state banking and other
regulatory authorities. Aegis will promptly inform Client of any changes in the
aforementioned regulations which materially affect implementation of the
Program.
3. RIGHTS, OBLIGATIONS, AND DUTIES OF AEGIS
(a) Aegis shall have the right to appoint any and all third parties
necessary to perform the duties recited hereunder so long as Aegis abides by and
is not in breach of this Agreement; provided, that (i) Aegis shall remain liable
to Client for the performance of such third party; (ii) Aegis warrants that the
performance of such third party shall be in compliance with all laws and
regulations applicable to the activities contemplated under this Agreement and
shall be in conformity with Aegis' obligations under this Agreement; (iii) Aegis
provide Client with thirty (30) days written notice prior to appointing such
third party; and (iv) at Client's election, Client may continue to deal directly
and exclusively with Aegis, notwithstanding such appointment.
(b) In connection with the performance of its duties hereunder, Aegis shall
abide by all written procedures and Program specifications now or hereafter
furnished to Client. There shall be no changes to the Program's specifications
without Client's prior written approval. Within sixty (60) days of the
execution of this Agreement and prior to the date of the first solicitation
under the Program, Aegis will prepare and furnish to Client a complete set of
Program Materials, which Program Materials shall be revised and approved by
Client, as necessary, to conform to Client's requirements. Client and Aegis
agree to cooperate and work together in jointly developing. testing, and
producing those Program Materials which will be used in connection with
Prospects who are customers of Client's affiliates. Aegis' employees,
representatives and/or agents shall not make any representations or warranties,
about the Program to any Customer,
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Prospect, or Subscriber except as set forth in the Program Materials and as
approved by Client.
(c) Aegis shall indemnify and hold harmless Client and its authorized
representatives and service providers from and against any liability, claims,
damages and costs (including reasonable attorneys' fees) arising out of any
breach by Aegis or its employees, officers, agents, and contractors, of this
Agreement or by any unauthorized statements, warranties or representations made
by Aegis's marketing personnel, employees, agents, or contractors.
(d) Aegis shall provide office space, computer, phone, and other equipment
and services and staffing levels sufficient to implement and direct the
Solicitation and Telephone Solicitation of the Program, including the
anticipated growth in Aegis's volume that is likely to result from solicitation
of Client's portfolio, on behalf of Client in accordance with the provisions of
the projected schedule attached to this Agreement as Exhibit G. All incoming
and outgoing Solicitation calls shall be handled in such a manner so as to
present the Program as a product and/or service of Client. All correspondence
shall be conducted in this manner as well. Aegis will use its best efforts to
assist Client's training staff in developing and delivering information to
Client's employees which will ensure that Client's servicing personnel
understand the Program and its effects upon the work being performed by such
servicing personnel.
(e) [***] Aegis shall perform all services necessary to implement the
Program, including, without limitation, solicitation, daily mail pick-up, mail
distribution, recording of all cash receipts, quality control checks on
applications or any other incomplete paperwork, credit card authorizations,
deposits, data capture of necessary homeowner information from
application/verifications, hard copy reports of sales to Client on a monthly
basis, process commencement letters to new Subscriber, ACH pre-notification
instructions, ACH instructions on behalf of the Subscriber, Subscriber
inquiries, resolution of any ACH failures, process changes to Subscriber's
mortgage and correspondence of same 1099 reporting for Subscribers and IRS,
handling of all NSF notifications to Subscribers, notification of termination
and performance of Subscriber service functions.
(f) Aegis shall, at its expense, be responsible for compliance with Agency
or Investor requirements applicable to the Program. Client agrees to cooperate
with Aegis to obtain any necessary approval for the Program. If the Agencies or
Investors determine that the Program may no longer be offered, this Agreement
may be suspended by Client and terminated with cause in accordance with the
provisions of Section 10(b) of this Agreement but without payment of the
enrollment fee refund described in Section 10(c) of this Agreement.
[***] Confidential treatment has been requested for certain portions of this
document
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(g) Aegis shall furnish to Client, as soon as available and in any event
within one hundred twenty days after the close of each of Aegis's fiscal year, a
copy of its unaudited annual financial statement. Aegis shall also furnish to
Client, as soon as available and in any event within one hundred eighty (180)
days after the close of each fiscal year, a copy of its annual audited financial
statement, certified by an independent public auditor. All such financial
statements shall be prepared in accordance with GAAP, applied on a consistent
basis. In the event that Client determines, in the exercise of its reasonable
discretion, that there has been a material adverse change in Aegis's financial
condition, this Agreement may be suspended by Client and terminated with cause
in accordance with the provisions of section 10(b) of this Agreement but without
payment of the enrollment fee refund described in Section 10(c) of this
Agreement.
(h) Aegis shall make no attempt to solicit or use Client's Customers, or
any Target Market Prospect which is a customer of a corporation affiliated with
Client, in any manner or for any other product or service not covered by the
terms of this Agreement.
(i) Aegis shall make available to Client or its agents on-site inspection
of Aegis' premises and any activity related to the Program during normal
operating hours with reasonable notice. Aegis shall use commercially reasonable
efforts to develop a system that would enable Client to monitor, from its
servicing center in Phoenix, Arizona, Customer telephone calls.
(j) Aegis shall not disclose the Client Proprietary Information to any
person, firm or corporation without Client's prior written consent unless
otherwise required by law, then only after notice to and consultation with
Client.
(k) Aegis hereby promises that the Program will perform properly and in
accordance with the Program specifications. Aegis shall cooperate with Client
and shall use commercially reasonable efforts to assure the success of the
Program in accordance with Client's requirements. Client currently requires the
Program to:
(i) attain a blended Portfolio Penetration Rate of between [***]
percent [***] and [***] percent [***]. For purposes of this sub-
paragraph, the definition of Total Target Market used in
calculating Portfolio Penetration Rate shall exclude all
Customers whose mortgage loans are serviced by Client as a result
of Client's acquisition of a mortgage servicing portfolio where
those Customers have been solicited for a mortgage acceleration
product by a competitor of Aegis. Client and Aegis agree to
cooperate in identifying such Customers. The Portfolio
Penetration Rate shall be computed monthly commencing four (4)
months after completion of the last mailing during the Initial
Phase of a Solicitation as described in the Program Materials,
provided, however, that the determination of Portfolio
Penetration Rate shall be computed no less than annually
[***] Confidential treatment has been requested for certain portions of this
document
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commencing on the first anniversary of the effective date of this
Agreement; and
(ii) limit the Attrition Rate to no more than [***] percent [***]. The
Attrition Rate shall be computed monthly commencing four (4)
months after completion of the last mailing during the Initial
Phase of a Solicitation as described in the Program Materials.
(l) Aegis shall, on a monthly basis, reconcile the Fee Account. All ACH
activity involving the, Custodial Holding Account will be the sole
responsibility of Aegis. All manual, non-ACH activity involving the Custodial
Holding Account must be approved in, writing by Client. Aegis will provide
Client with a copy of each month's Bank Account reconciliation no later than the
twentieth business day of the following month.
(m) Aegis shall duplicate all pertinent data on a daily basis and provide
for off-site storage of said duplicate data.
(n) All communications with Prospects shall be in Client's name, except as
otherwise approved by Client in writing. Aegis shall submit all routine
standardized contemplated communications to Client for Client's approval prior
to distribution. Client shall have the right to periodically review scripts
utilized by Aegis. Aegis agrees that the approach of its employees to Customers
in telephonic conversations will be professional and will not include any
behavior that, in Client's opinion, constitutes an excessively aggressive sales
tactic.
(o) Aegis shall perform all fee income accounting functions. Client
reserves the right, with reasonable notice and in a manner not calculated to
disrupt Aegis's business operations, to examine any and all of Aegis's business
records including, without limitation those books and records relating to fee
income calculation.
(p) Aegis shall provide Client with monthly management information reports,
as described in Exhibit H of this Agreement, detailing the status of the Program
and containing such other information regarding the status of the Program as
Client shall reasonably request.
(q) Aegis shall provide marketing assistance necessary to implement the
Solicitation of Client's defined Target Market, including but not limited to
writing, design, copyrighting, mechanical artwork, photography, illustrations,
printing, mailing, and customer service.
(r) Aegis shall designate at least one of its employees as Client's
dedicated account representative. Such account representative shall be
exclusively dedicated to servicing Client's account with Aegis and shall be
subject to the approval of Client.
[***] Confidential treatment has been requested for certain portions of this
document
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(s) Aegis shall use commercially reasonable efforts to develop, at a
mutually agreed upon cost, a process of converting loans in Client's loss
mitigation program to the Program.
(t) Aegis shall provide Client with a copy of its business continuation
plan, describing alternative facilities, communications, computer systems, and
all other necessary resources required to continue its business and its
performance under the terms of this Agreement in the event that Aegis's existing
facilities become damaged, inaccessible, or otherwise unavailable. The business
continuation plan shall be furnished to Client by Aegis within ninety (90) days
of the effective date of this Agreement.
(u) Aegis' duties outlined in this Section 3 shall be performed at Aegis'
expense.
(v) To the extent such duties have not already been described in Sections
3(a) through 3(u), Aegis shall also perform the items allocated to it on Exhibit
B to this Agreement
4. RIGHTS AND DUTIES OF CLIENT
(a) Client agrees to deliver to Aegis on a monthly basis during the Initial
Term of this Agreement, and any Extended Term, all requested data necessary to
implement the approved Solicitation of Client's Target Market, including but not
limited to Client's Customers names, addresses, telephone numbers, and original
and current loan information in a format mutually agreed upon.
(b) Commencing on a date agreed to by the parties, Client shall deliver
monthly all necessary data from newly originated loan Customers not solicited or
rescheduled at the point of origination during the previous quarterly period for
additional Solicitation as mutually agreed upon by the parties.
(c) Client shall appoint a specific liaison person or liaison team to Aegis
through which all communications will flow and decisions will be made.
(d) If Client becomes aware of any disclosure requirements during the
enrollment phase which are mandated by federal and state banking and other
regulations, Client will promptly inform Aegis of any changes in the
aforementioned regulations which materially affect implementation of the
Program. Notwithstanding the foregoing Client shall have no duty to learn of
any changes in the law and shall not be liable to Aegis if it fails to advise
Aegis of any such changes. Client will have sole approval rights to Subscriber
Terms and Conditions.
(e) Client agrees that services provided by Aegis shall not relieve Client
from any obligation to maintain records in accordance with generally accepted
servicing standards. Client retains responsibility at all times for maintaining
adequate accounting
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management and reporting systems, audit functions, recovery routines, and the
operation of on-site computer equipment. Services provided by Aegis will not
impose upon or transfer to Aegis the responsibility for such functions.
(f) Client shall indemnify and hold harmless Aegis and its authorized
representative and service providers from and against any liability, claims,
damages and costs (including reasonable attorneys' fees) arising out of any
breach by Client of this Agreement or by any unauthorized warranties or
representations made by Client's personnel or employees to any Prospect,
Customer or Subscriber.
(g) Client's duties outlined in this Section 4 shall be performed at
Client's expense.
(h) In addition to duties described in Sections 4(a) through 4(g), Client
shall perform the item allocated to it on Exhibit B of this Agreement.
5. NON-DISCLOSURE COVENANT
Aegis and Client acknowledge that the Proprietary Information necessary for the
implementation of the Program is highly confidential and a valuable asset of its
respective owners, which has been and will continue to be developed by and for
the parties; which represents and will continue to represent a material
investment of the owner's time and money. Further both parties acknowledge that
such Proprietary Information has been or will be made available to either party
as a result of this Agreement on a confidential basis and that both parties have
accepted or will accept such Proprietary Information on such basis, thereby
establishing a confidential relationship and a position of trust with regard to
the same. Both parties agree not to:
(i) publish, communicate, disclose or divulge to any person, firm,
corporation or other legal entity, directly or indirectly, any of
the Proprietary Information, except as otherwise permitted herein
or required by law;
(ii) use the other party's Proprietary Information for its own
benefit, or for the benefit of any person, firm, corporation or
other legal entity, directly or indirectly, except as required in
the course of implementation of the Program;
(iii) use any of the other party's Proprietary Information or take any
other action to divert or attempt to divert, any business of or
any customers of, the other party to itself or any other
competitive person or legal entity, by direct or indirect
inducement; or to induce or attempt to induce any present or past
customer of either party to discontinue using the services of
either party; and
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(iv) employ or seek to employ any person who is employed by either
party or directly or indirectly induce persons to leave either
party, provided, however, either party may use (i) newspapers or
other media to generally solicit the public which can then result
in the hiring of an employee or (ii) a recruiter to hire an
employee provided such campaign is directed to the industry in
general and not exclusively to the other party's employees.
6. NO GRANT OF PROPRIETARY RIGHTS
Neither this Agreement nor the disclosure of proprietary information hereunder
shall be construed as granting to either party any right, title or license to
any patent application, trademark copyright, trade secret, service marks and any
other intellectual property right, or any software or know-how to which either
party has title or rights of ownership or license.
7. TERM
This Agreement will become effective upon execution by both parties. The
initial term of this Agreement shall be the period of three (3) years commencing
on the effective date of this Agreement (the "Initial Term"). Client shall have
the option to renew this Agreement for an additional two (2) year period (the
"Extended Term"). Client may exercise this renewal option by delivering to
Aegis, no later than thirty (30) days prior to expiration of the Initial Term,
written notice of its election to exercise this renewal option. Thereafter,
unless otherwise canceled in writing by either party in accordance with the
provisions of Section 10 of this Agreement, the terms and conditions of this
Agreement shall continue in force. Client shall be obligated to pay Aegis a
Termination Fee in accordance with Exhibit E of this Agreement. Aegis and
Client's continuing obligations under this Agreement relating to indemnification
for breach of duties, representation or warranties as provided in Section 5 of
this Agreement, shall survive the termination of this Agreement.
8. FEES TO CLIENT
(a) The fee structure and charges for services listed in Exhibit C shall
remain in effect during the Initial Term. Thereafter, Aegis and Client must
agree upon any revisions to the fee structure charged to Subscribers as a result
of changes in operating costs, or market conditions. Unless mutually agreed to
otherwise, Client shall share in any change in fees proportional to Client's
pro-rata share of current fees.
(b) Aegis will deposit the upfront enrollment fees collected from
Subscribers into the Fee Account and shall, on a monthly basis, transmit by
wire, no later than the tenth (10th) day of the month, Client's portion of such
fees, for fees earned during the
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previous mouth. The fee schedule for the Program is set forth in Exhibit C to
this Agreement.
(c) Aegis and Client may agree in writing to alternative pricing options
that differ from the fee schedule set forth in Exhibit C to this Agreement.
9. EXPENSES
(a) Client shall pay the expenses, if any, that are outlined in Section 4
and Exhibit A-3 of this Agreement. No additional expenses shall be added
without written approval by Client.
(b) Monies due one party to the other over 30 days will bear delinquency
charges at the rate of 10% or the maximum rate allowed by law, whichever is
less.
10. TERMINATION.
This Agreement may be terminated:
(a) without cause by Client, only in connection with those Subscribers
whose mortgage loans are sold by Client to a buyer who, after the purchase of
said mortgage loans, chooses not to permit Subscribers to participate in the
Program, as of the end of any calendar month during the Initial Term, and any
Extended Term, of this Agreement, by giving Aegis ninety (90) days prior written
notice. In the event of such termination during the Initial Term and any
Extended Term, Client shall pay Aegis the Termination Fee set forth in Exhibit E
of this Agreement. Payment of the Termination Fee by Client to Aegis shall
fully satisfy Client's obligations under this Agreement and shall serve to
release Client from any continuing obligation to Aegis in connection with
Subscriber mortgage loans that are sold as aforesaid, other than those
obligations set forth in Section 7 of this Agreement; and
(b) with cause by Aegis and Client at any time upon the expiration of
thirty (30) days following written notice to the other party in the event of the
other party's material breach of this Agreement (which notice specifies the
material breach); provided, that the breaching party fails to cure such breach
to the satisfaction of the other party within such thirty (30) day period, and
(c) notwithstanding termination of this Agreement, Aegis and Client will
honor all current Subscriber contracts in accordance with the term of this
Agreement, it being understood that, except as provided in this Section, each
individual Program Subscriber has the sole and exclusive right to cancel his
enrollment in the program; provided, however, Client, in its discretion, may
terminate, a Subscriber contract if (i) this Agreement is terminated with cause
as described in Section 10(b) above, and (ii) the Subscriber contract allows for
termination. Furthermore, in the event Client's
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termination of the Subscriber contract is based on Aegis's material breach of
this Agreement (which breach shall be deemed to not include a termination with
cause under the provisions of Sections 3(f), 3(g), or 11(p) of this Agreement),
Aegis and Client shall, respectively and on a pro rata basis, reimburse the
Subscriber for the portion of the enrollment fee described in Exhibit C of this
Agreement that is received by Aegis and Client. This enrollment fee refund shall
be described in a provision of the Subscriber contract which shall be mutually
acceptable to Client and Aegis.
11. ADDITIONAL PROVISIONS
(a) Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the parties, their successors and assigns.
(b) Amendments am Modifications. This Agreement may only be amended,
---------------------------
waived, changed, modified or discharged by an agreement in writing signed by the
parties.
(c) Integration. This Agreement represents the final understanding of the
-----------
parties as to all matters included herein and supersedes all prior written or
oral agreements of the parties on matters covered herein.
(d) Governing. This Agreement shall be construed in accordance with the
---------
laws of the State of Iowa.
(e) Severability. If any provision or term of this Agreement shall be
------------
found to be illegal or unenforceable for any reason whatsoever, all other
provisions and terms shall remain in full force and effect.
(f) Force Majeure. Notwithstanding any other provision of this Agreement,
-------------
neither party shall be deemed in default of this Agreement or bear liability to
the other party for any delay, failure in performance, loss, or damage arising
from cause beyond its reasonable control, including, but not limited to the
following: fire, embargo, explosion, power failure, earthquake, nuclear
accident, volcanic action, flood, war, civil disturbance interventions of
military authority, acts of God or public enemy; provided, however, that (i) no
such event shall excuse the payment of money due hereunder and (ii) if
Subscriber is entitled to fees or damages under the Subscriber contract as a
result of the aforesaid items, the party that fails to perform under this
Agreement shall be responsible for same.
(g) Assignment. Except as otherwise provided herein, the parties agree not
----------
to assign or otherwise transfer their rights or delegate their obligations under
this Agreement without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Client shall have the right to
assign all of its rights and obligations under this Agreement to any other
entity that is owned, either directly or indirectly, by Norwest Corporation. A
stock transaction involving the assignment or
14
transfer of full or partial ownership of a party shall be deemed to be an
assignment subject to this section. No such assignment or delegation by either
party will relieve such party of its obligations or duties under this Agreement.
(h) Notices. All notices or other written communications regarding this
-------
Agreement are to be provided by U.S. First Class Mail or national overnight
courier service with receipt acknowledged.
If to Aegis:
Aegis Mortgage Acceleration Corp.
Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Legal Department
If to Client:
Xxxxxxx Xxxxxx
Senior Vice President
Norwest Mortgage, Inc.
000 X.X. Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
Senior Vice President and General Counsel
000 X.X. Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
(i) Exclusivity. Client agrees that Aegis shall be the exclusive provider
-----------
of any program involving debt reduction through ACH transfers, and that as long
as the Agreement is in force, Client will not conduct a program for its
Customers similar to the Program either internally or with a third party, unless
the program is in place with customers who are acquired with a portfolio
acquisition. Aegis shall use commercially reasonable efforts to convert to the
Program, at a mutually agreeable cost, mortgage loans that are acquired as a
result of a portfolio acquisition.
(j) Conversion. Aegis agrees to convert the existing CPI/Alltel bi-weekly
----------
mortgage loans to the Program without cost to Client.
(k) [***]
[***] Confidential treatment has been requested for certain portions of this
document
15
[***]
(l) [***]
(m) Customer Service Standards. Aegis agrees to provide Customers with a
--------------------------
level of customer service at least equal to the level of customer service
provided by Client directly to its customers. The provisions of Exhibit F
hereof are the current customer service levels. Exhibit F may be modified from
time to time by Client by delivering to Aegis a revised and updated version of
its own customer service levels.
(n) EDT Development. Aegis will use its best efforts to assist the
---------------
development of any additional electronic data interface capabilities with
CPI/Alltel that Client requests.
(o) Incentives. Aegis will use its best efforts to cooperate with Client
----------
in developing a customer service representative incentive plan to be funded by
Aegis.
(p) [***]
[***] Confidential treatment has been requested for certain portions of this
document
16
[***]
(q) Escrow Agreement. Aegis will place full, complete, and accurate
----------------
working copies of all software, software hard code, software operating
instructions, subscriber database, and daily administrative procedures,
including minimum processing system requirements, installation procedures,
operating procedures, and diskettes containing complete processing program
necessary to operate the mortgage acceleration process (the "Back-Up System")
into escrow with Information Architects, Inc. ("Escrow Agent"), whose address is
00000 Xxxxxxx 000, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000, within seven (7) days
of the date of this Agreement. Aegis will simultaneously provide Escrow Agent
with an expanded customer service procedure (the "Manual"). Escrow Agent will
confirm with Client its receipt of the Back-Up System within ten (10) days of
the date of this Agreement.
Aegis will provide Escrow Agent with an update of the Back-Up System
and Manual by the fifteenth (15th) day of each mouth or upon each two
percent (2%) increase in Program enrollment. Escrow Agent will notify
Client by the twentieth (20th) day of each month if it has not
received the required information.
Client will notify Escrow Agent of any failure by Aegis to provide the
debit and payment services to Client subscribers described in the
Client Agreement for a period in excess of five (5) consecutive
business days. Upon receipt of this notice, Escrow Agent will call an
officer of Aegis. If Aegis cannot cure the problem within two (2)
business days, Escrow Agent will deliver to Client by overnight mail,
the Back-Up System and Manual without being required to obtain the
consent of Aegis.
(r) ODFI. Aegis will cooperate with Client in supporting a transition to
----
Norwest Bank as the ODFI.
(s) On-line Access. Client and Aegis mutually agree to work together in an
effort to develop a system to permit Client on-line, inquiry-only access to
customer data and payee authorization information through Aegis's back-end
Novell system.
IN WITNESS WHEREOF, the parties have executed this Client Agreement on the date
below indicated, effective as of the date first above written.
NORWEST MORTGAGE, INC.
/s/ Illegible By: /s/ Xxxxxxx Xxxxxx
------------------------------ -------------------------------------
Attest Xxxxxxx Xxxxxx, Senior Vice President
[***] Confidential treatment has been requested for certain portions of this
document
17
Date: June 9, 1997
----------------------------------
AEGIS MORTGAGE ACCELERATION CORP.
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ -------------------------------------
Attest Xxxx X. Xxxxxx, President
Date: June 18, 1997
-----------------------------------
18
Exhibit A:
---------
Program Description
The Norwest Mortgage Equity Enhancement Program is not a mortgage, but a
method of rescheduling standard monthly mortgage payments. The Program provides
the equity benefits and reduced interest of biweekly mortgage payments, and
offers the added flexibility and convenience of customer designated payment
intervals (weekly, biweekly monthly, or semi-monthly) and may provide interest
on funds awaiting payment to a mortgage servicer.
Homeowners can participate in this program regardless of where their
mortgages originated or are currently being serviced.
The Norwest Mortgage Equity Enhancement Program can be offered to your
customers and to third party servicers at a substantially lower cost than
competitive accelerated mortgage plans. In addition, its low, one-time
enrollment fee entitles homeowners to continue to use the program even if they
purchase a new home.
The Norwest Mortgage Equity Enhancement Program does not change the
mortgage terms or payment due date, but does require the mortgage servicer to
receive payments electronically, and to process periodic reductions of
principal.
The Norwest Mortgage Equity Enhancement Program will allow customers to
debit up to ten (10) separate accounts per customer and pay one or more payee
financial institutions.
Here is how the Norwest Mortgage Equity Enhancement Program works using a
biweekly payment schedule as an example:
. One half of the regular monthly mortgage payment is collected every two
weeks by electronic transfer from the homeowner's bank account to an
interest bearing custodial account [see 1(l)].
. Mortgage payments are automatically paid to the mortgage servicer
monthly. Biweekly payments -- the equivalent of thirteen monthly
mortgage payments -- are collected annually.
. The two extra biweekly payments plus the interest earned, if interest in
paid by Client are sent to the mortgage servicer to directly reduce the
mortgage principal balance.
Here is how the Norwest Mortgage Equity Enhancement Program works with a semi-
monthly payment schedule:
19
. One half of the regular monthly payment + 1/24 of the regular monthly
payment are deducted two times each month (e.g., 10th and 25th).
. The additional amount (1/24 of the regular mortgage) is added to each
half payment, so as to replicate the pay down pattern of the bi-weekly
schedule (13 monthly payments per year).
. Additional principal will be applied each mouth (1/12 of monthly
payment).
Here is how the Norwest Mortgage Equity Enhancement Program works with a monthly
payment schedule:
. The regular monthly payment (PITI) + 1/12 of the regular monthly payment
will be deducted once each month.
. Additional principal will be applied each mouth (1/12 of monthly
payment).
Here is how the Norwest Mortgage Equity Enhancement Program works with a weekly
payment schedule:
. One fourth of the regular monthly payment (PITI) will be deducted every
week.
. The customer makes the equivalent of 13 mortgage payments since there
are 52 weekly deductions resulting in an additional principal payment.
. There will be four months during the calendar year in which five weekly
payments will be collected.
20
[***]
[***] Confidential treatment has been requested for certain portions of this
document
21
[***]
[***] Confidential treatment has been requested for certain portions of this
document
22
[***]
[***] Confidential treatment has been requested for certain portions of this
document
23
[***]
[***] Confidential treatment has been requested for certain portions of this
document
24
Exhibit B:
---------
Additional Duties and Responsibilities of Client and Aegis
Aegis's Program Manual is incorporated herein by this reference.
25
Exhibit C:
---------
Fee Schedule
[***]
[***] Confidential treatment has been requested for certain portions of this
document
26
Amendment to Client Agreement, Exhibit C: Fee Schedule
This Amendment to the Client Agreement ("Agreement") dated January 17, 1997, is
effective as of October 1, 1999 between Norwest Mortgage, Inc. ("Client") and
Aegis Mortgage Acceleration Corp. ("Aegis"). It does not extend the existing
expiration date of the Agreement or change commissions for either the [***] or
the [***] offers.
Aegis and Client hereby agree to utilize the new [***] product offer as
a major part of the continuing portfolio mailing program. Under this program,
the Subscriber's enrollment fee is collected from [***] the standard Aegis'
[***] product in which the Subscriber pays the fee at the time of enrollment.
Aegis and Client hereby agree that Client will be paid a [***] commission for
all [***] offers and that Exhibit C to the Agreement shall be deemed to reflect
this commission amount during its remaining term.
Except as amended herein the Agreement shall continue to be in full force and
effect.
Please indicate your acceptance of this Amendment by executing two copies below.
CLIENT: AEGIS MORTGAGE ACCELERATION
CORP.:
By /s/ XXXX X. XXXXX By /s/ XXXX X. XXXXXX
------------------------------------- --------------------------------
Name XXXX X. XXXXX Name XXXX X. XXXXXX
----------------------------------- ------------------------------
Title VICE PRESIDENT Title PRESIDENT
---------------------------------- -----------------------------
Date 12/14/99 Date 12/15/99
----------------------------------- ------------------------------
Please sign, date and return one copy of this Amendment to:
Xxxxxxx X. Xxxxxxxx
Aegis Mortgage Acceleration Corp.
Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
[***] Confidential treatment has been requested for certain portions of this
document
27
Exhibit D:
---------
Flow Of Funds Through Bank Account
28
AEGIS MORTGAGE ACCELERATION CORPORATION FLOW OF FUNDS
[FLOW CHARTS APPEAR HERE]
29
Exhibit E:
---------
Termination Fee
1. The following definitions are part of this termination fee schedule and the
termination provisions contained in paragraphs 7 and 10 of this Agreement.
(a) Campaign. Campaign shall mean a mail solicitation assigned a specific
--------
campaign number. A campaign number is assigned by Aegis to a specific mail
drop at a specific point in time to Prospects with similar characteristics.
(b) Campaign Term. Campaign Term shall mean the sixty (60)-month period
-------------
beginning on the date of the campaign mailing.
2. If this Agreement is terminated by Client without cause and Client causes
the loans to be removed from the Program under the provisions of paragraph 10(a)
[***] as defined in paragraph 7 of this Agreement, then a termination fee (the
"Termination Fee") shall be calculated for each active account participating in
the Program [***] arising from each Campaign that has not completed the 60
month Campaign Term and Client shall pay Aegis such Termination Fee within 30
days from receiving detailed billing report from Aegis after termination notice
is received or exercise of option notice date.
3. No Termination Fee shall be payable for an active account participating in
the Program [***] arising from any Campaign that has completed the 60 month
Campaign Tenn.
4. If Client elects to renew this Agreement for an Extended Term under the
provisions of paragraph 7 and this Agreement is not terminated by Client with
cause or by Aegis, then Client shall be obligated to pay a Termination Fee, as
defined in this Exhibit E, on all active accounts participating in the Program
[***] at the time of termination that were enrolled during the Extended Term.
5. Client shall pay Aegis Termination Fees as follows:
(a) No Termination Fee representing recovery of unamortized marketing costs
shall be payable for any Campaign containing a [***] offer regardless of
the 60 month Campaign Term.
(b) A Termination Fee representing recovery of unamortized marketing costs
shall be payable at the rate of [***] per active account participating in
the Program [***] per month for the remaining months in the Campaign Term
for any Campaign containing a [***] offer.
[***] Confidential treatment has been requested for certain portions of this
document
30
(c) A Termination Fee representing recovery of lost revenue from program
administration shall be payable at the rate of [***] per active account
participating in the Program [***] per month for the remaining months in
the Campaign Term for any campaign containing a [***] offer or a [***]
offer.
6. Termination Fees as defined in paragraphs 5(b) and (c) above shall be
calculated on a Net Present Value basis at a discount rate of [***].
[***] Confidential treatment has been requested for certain portions of this
document
31
Exhibit F:
---------
Customer Service Level Standards
---------------------------------------------------------------------------------------------------------
Enrollment Center
---------------------------------------------------------------------------------------------------------
Quality of Service: [***] or more of all incoming calls answered within [***]
---------------------------------------------------------------------------------------------------------
Call Answer Rate: [***] or more of all incoming calls answered by a specialist
---------------------------------------------------------------------------------------------------------
Call Abandon Rate: [***] or less of all incoming calls
---------------------------------------------------------------------------------------------------------
Time Spent in Queue: [***] or less
---------------------------------------------------------------------------------------------------------
PBS Requests Completed: [***] or more of all requests completed within [***] business days of
receipt
---------------------------------------------------------------------------------------------------------
Call Monitoring Checklist: Score of [***] or above on all, monitored calls. Each specialist is
monitored on [***] calls per month
---------------------------------------------------------------------------------------------------------
Customer Service Survey: Score of [***] or above on each survey returned
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Enrollment Processing
---------------------------------------------------------------------------------------------------------
Enrollments Completed: [***] or more of all enrollments uploaded each [***]
---------------------------------------------------------------------------------------------------------
Data Entry Error Rate: [***] or less of the enrollments completed
---------------------------------------------------------------------------------------------------------
File Checklist: For each hard file created, a checklist should be attached
---------------------------------------------------------------------------------------------------------
Enrollment Turnaround Time: [***] or less
---------------------------------------------------------------------------------------------------------
Fee Deposit & Enrollment [***]
Reconciliation:
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Customer Service
---------------------------------------------------------------------------------------------------------
Quality of Service: [***] or more of all incoming calls answered within [***]
---------------------------------------------------------------------------------------------------------
Call Answer Rate: [***] or more of all incoming calls answered by a representative
---------------------------------------------------------------------------------------------------------
Call Abandon Rate: [***] or less of all incoming calls
---------------------------------------------------------------------------------------------------------
Unresolved Requests: [***] resolved within [***] business [***] of receipt
---------------------------------------------------------------------------------------------------------
Call Monitoring Checklist: Score of [***] or above on all monitored calls. Each representative
is monitored on [***] calls per mouth
---------------------------------------------------------------------------------------------------------
Customer Service Survey: Score of [***] or above on each survey returned
---------------------------------------------------------------------------------------------------------
Complaints: Complaints are kept in a file with documentation detailing the
resolution of each complaint
---------------------------------------------------------------------------------------------------------
Error Reports: Manually checked daily
---------------------------------------------------------------------------------------------------------
Call Sheets: Representatives complete Call Sheets on each telephone call they
take. The sheets can be referred to if necessary
---------------------------------------------------------------------------------------------------------
Written Correspondence: Sent within [***] of original call
---------------------------------------------------------------------------------------------------------
Note: The Performance measurement period is monthly unless otherwise indicated.
For example, the call answer rate will be reported at month end (e.g. 94% for
January 1997).
[***] Confidential treatment has been requested for certain portions of this
document
32
EXHIBIT G:
---------
PROJECTED MAILINGS - SUMMARY
[***]
[***] Confidential treatment has been requested for certain portions of this
document
33
Exhibit H:
---------
Management-Information Reports
Aegis shall furnish Client with the following Management Information Reports.
Such reports shall be delivered on a frequency, format, and media mutually
acceptable to Aegis and Client.
1. Sponsor Activity Summary
2. Campaign Report
3. Enrollments Received and Uploaded
4. Inbound Call Statistics
5. Actual versus Standard Customer Service Performance
6. Portfolio Penetration Rates
7. Attrition Statistics
8. Commission and Fee Accounting
9. Bank Account Reconciliations
34
December 10, 1999
Xxxxx X. Xxxxxxxx
Vice President
Aegis Mortgage Acceleration Corp.
Three Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Aegis Client Agreement
----------------------
Dear Xxx:
Thank you for your letter of October 29, 1999 regarding the extension of the
Initial Term of the Client Agreement dated January 17, 1997 by and between Aegis
Mortgage Acceleration Corporation ("Aegis") and Norwest Mortgage, Inc. ("NMI")
(the "Agreement"). NMI has agreed to a six-month extension of the Initial Term
described in the Agreement.
The Agreement is modified as follows:
1. The second sentence of paragraph 7 of the Agreement is deleted and replaced
with the following:
The initial term of this Agreement shall be the period of three and one-
half (3 1/2) years commencing on the effective date of this Agreement (the
"Initial Term") and ending at the close of business on July 17, 2000.
2. Except as expressly set forth herein, the Agreement is not modified in any
way and is expressly ratified and reaffirmed in its entirety.
Please acknowledge Aegis's agreement to these modification terms by executing
this letter in the space provided below and returning it to the undersigned.
Please call me at (000) 000-0000 if you have any questions.
Very truly yours,
NORWEST MORTGAGE, INC.
By /s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx, Vice President
THE FOREGOING MODIFICATION PROVISIONS ARE EXPRESSLY ACKNOWLEDGED AND AGREED TO:
AEGIS MORTGAGE ACCELERATION CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx, Vice President
35
